Excerpt:.....municipal boroughs act (bom. xviii of 1925), sections 34(2), 58(f)--power to suspend municipal servant--power exercised rightly whether servant entitled to wages during period of suspension--right of servant where employer has no power of suspension--dismissal of servant by municipality--such action whether open to review in civil court.;if a master chooses not to terminate a contract of service of his servant notwithstanding dereliction of duty on his part entitling the master to dismiss the servant, the master cannot by merely suspending the servant refuse to pay the wages of the servant during the period of the suspension treating the contract as a continuing contract. the reason of this rule is that there is no implied power in the employer to punish a servant by..........nath goswami [1939] 1 cal. 46. but different considerations would arise where the master has the power of suspension which he exercises upon a supposed misconduct of the servant. in that case suspension will inevitably mean the suspension of the entire contract and therefore the obligations on both sides. as the master of the rolls put it in wallwork v. fielding [1922] 2 k.b. 66 172:--. it seems to me, as indisputable that if there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended. it seems to me that is the inevitable meaning of suspension, and that involves the suspension of payment for the discharge of the duty.5. that the municipality has the power to suspend its servants cannot be doubted and was not disputed.....

Judgment:

Wassoodew, J.

1. These two second appeals Nos. 931 and 968 of 1940 arise from a suit instituted by the plaintiff Padrnakant Motilal Vora, who prior to his suspension was a Sub-Overseer or Zilla Inspector in the Ahmedabad Municipality, for a declaration that he was wrongly and improperly dismissed from service by the Municipality and for a direction to that body that, he should be reinstated in service and paid his salary for the period of his suspension till reinstatement. The charges against him were that he in his official capacity was guilty of submitting false reports on three occasions in regard to certain building works within the municipal area, and that he was generally careless and negligent in his duties. The plaintiff was suspended upon the report of his superior by the Chief Officer of the Municipality on January 11, 1933, and, with the approval of the Standing Committee and after proper enquiry, was ultimately dismissed by the Municipality on June 23, 1933. His case is that in the course of the inquiry by the officer deputed for the purpose by the Chief Officer of the Municipality he was not given a reasonable opportunity to defend himself as required by the rules of the Municipality, and that the inquiry in itself was not in consonance with the principles of natural justice inasmuch as evidence was not tendered in his presence and he was not allowed to cross-examine the witnesses against him.

2. Both the Courts below have concurrently found that proper charges were framed, that the main body of evidence in support of those charges which consisted of documents on the record of the Municipality was shown to the plaintiff and made available to him for scrutiny, that according to his admissions the inquiry was held in his presence, that the documents required in his defence were kept ready for his use before the inquiry officer, and that in consequence sufficient opportunity was given to him to defend himself. But the Courts below thought that although the dismissal was right and therefore the plaintiff was not entitled to damages on that account, he was at least entitled to his pay during the period of his suspension. The trial Court founded its conclusion upon what, it believed to be an admission of the claim, in that respect contained in the written statement of the Municipality. The lower appellate Court thought that there was no such admission, and that a wrong impression was created on the trial Court by a clerical mistake in the written statement. But at the same time it held that an officer under suspension must still be regarded 'as in the service of the employer although not on duty' and that in the absence of any special rules to the contrary the Municipality must pay its servants during the period of their suspension. Accordingly a decree for Rs. 374-6-0 was passed in the plaintiff's favour. That amount was fixed in slight modification of the trial Court's decree for Rs. 370. The rest of the claim of the plaintiff in regard to the declaration and consequential relief was dismissed. Against that decree both the plaintiff and the Municipality have filed separate appeals.

3. There can be no doubt in view of the state of the law that the action of a Municipality in dismissing its servants under the authority delegated under the Municipal Act is not open to review in a Court of law, provided that the Municipality has reasonably acted within its powers, that is, the grounds of dismissal are proved, that the inquiry against the servant is conducted in accordance with the principles of natural justice, and that the servant is given reasonable opportunity of being heard in his defence. Whether that opportunity was given or not would depend upon the circumstances and facts proved, and I accept in this second appeal the conclusion of the Courts below that all that was practicable was done to inform the plaintiff of the nature of the charges against him and of the evidence available and tendered with a view to eliciting his defence and to giving him an opportunity of substantiating it. The inquiry seems to have been conducted openly according to the plaintiff's own statement and in view of the nature of the charges all the Municipal record in support thereof was made available. Consequently it seems to me there is no good ground for saying that the dismissal of the plaintiff was wrongful. It was said that the evidence did not warrant a drastic action like dismissal. But upon that point the Municipality was the sole judge. It was pointed out in Manekji v. Municipal Commissioner of Bombay (1929) 32 Bom. L.R. 463 that where the procedure in dismissing a municipal servant was faultless and the aggrieved person has appealed to the tribunal or the municipal body for redress, there could be no review of the Municipality's act in a civil Court. Consequently the plaintiff's appeal No. 931 of 1940 must fail, and is dismissed with costs.

4. There then remains the Municipality's appeal against the order of payment of the wages to the plaintiff during the period of his suspension. It is clear upon authority that if a master chooses not to terminate a contract of service of his servant notwithstanding dereliction of duty on his part entitling the master to dismiss the servant, the master cannot by merely suspending the servant refuse to pay the wages of the servant during the period of the suspension treating the contract as a continuing contract. The reason of the rule is that there is no implied power in the employer to punish a servant by suspension [see Hanley v. Pease & Partners, Limited [1915] 1 K.B. 698 and Secretary of State for India in Council v. Surendra Nath Goswami [1939] 1 Cal. 46. But different considerations would arise where the master has the power of suspension which he exercises upon a supposed misconduct of the servant. In that case suspension will inevitably mean the suspension of the entire contract and therefore the obligations on both sides. As the Master of the Rolls put it in Wallwork v. Fielding [1922] 2 K.B. 66 172:--. it seems to me, as indisputable that if there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended. It seems to me that is the inevitable meaning of suspension, and that involves the suspension of payment for the discharge of the duty.

5. That the Municipality has the power to suspend its servants cannot be doubted and was not disputed by the plaintiff. What he disputed was that he was suspended without just grounds and that the subsequent procedure in regard to his dismissal was improper and unfair. Under Section 58 (f) of the Bombay Municipal Boroughs Act there is provision for making rules delegating to the officers designated in the rules the power to suspend or dismiss any officer or servant. Section 34(2) of the Act, which defines the powers and duties of the Chief Officer, provides that the Chief Officer may suspend or dismiss any municipal servant whose salary does not exceed Rs. 30 subject to certain provisions of the Act and subject further to the provisions of the rules for the time being in force, any other municipal officer or servant, not being the health officer, engineer or auditor of the Municipality. The relevant rule is Rule 109 of the Ahmedabad Municipal Rules. It says:--

The Chief Officer shall have power to suspend any other Municipal Officer except the Health Officer, Municipal Engineer, Water Works Engineer and Drainage Engineer in anticipation of the orders of the Municipality to be obtained through the Controlling Committee.

6. The question as to whether and when such orders of the Municipality were obtained was not enquired into by the Courts below because there was no dispute as to the regularity of the procedure followed in that matter. There is however a bundle of correspondence on the subject which shows that the Municipality upon the report of the Chief Officer inquired into his recommendations for termination of the services of the plaintiff in March, 1933, and it is reasonable to suppose that all steps were properly taken according to the provisions of the law regulating the powers of the Chief Officer and the Controlling or the Standing Committee. Upon that correspondence no question was ever raised that the rules in regard to suspension were not observed in the plaintiff's case. I shall therefore assume that the suspension of the plaintiff was regularly ordered in conformity with the statute and the rules of the Municipality.

7. If so, the question is whether the Courts below were justified in granting the plaintiff his salary during the period of suspension. The learned Assistant Judge seems to have fallen into an error in assuming as I have stated that the officer under suspension was still in the service of the employer. Wallwork v. Fielding is an authority to the contrary, where the power to suspend is conferred on the employer. The effect of suspension is clearly stated by Warrington L. J. in that case as follows (page 74):--

If the employed is suspended from his functions as an employed person, it seems to me the effect of that is to suspend the relation of employer and employed for the time being; to excuse the servant or the employed person from performing his part of the contract, and at the same time to relieve the employer from performing his part of the contract. It would be a most extraordinary thing if suspension (assuming that there is power to effect suspension) were to be so one-sided that the servant were to be excused from performing his part of the contract while the employer was to remain liable to perform his.

8. In short the suspension suspends for the time being the relationship of master and servant between the parties. Consequently if the suspension of the plaintiff was rightly ordered and within the power of the Municipality and its officers, the suspension must involve the suspension of payment of wages. Therefore the direction of the lower Courts to pay the plaintiff wages during the period of suspension was illegal. Accordingly the Municipality's appeal No. 968 of 1940 succeeds and the decree appealed from must be set aside, and the plaintiff's suit dismissed with costs throughout.